Case Brief: Nathan v. Alamo Heights Independent School District

1 · Memory Jogger

The en banc Fifth Circuit, by a 9-8 vote, upholds Texas S.B. 10's mandate that every public-school classroom display the King James Version of the Ten Commandments, holding that Stone v. Graham fell along with Lemon after Kennedy v. Bremerton and that a government display without coercion, burden, or tangible benefit does not "establish" religion under the Founding-era hallmarks test.

2 · Detailed Case Facts

The statute

In 2025, the Texas Legislature enacted Senate Bill 10, codified at Texas Education Code § 1.0041. The law requires the governing body of every Texas public elementary and secondary school to display, in a conspicuous place in each classroom, a 16-by-20-inch durable poster or framed copy of a state-prescribed text of the Ten Commandments. The prescribed text is a King James Version rendering — the exact numbering and wording of the "Protestant" Decalogue, differing from Catholic, Lutheran, and Jewish enumerations. The statute requires that the text be "legible to a person with average vision from anywhere in the classroom," Tex. Educ. Code § 1.0041(b)(1), forbids any accompanying context statement, and makes the display mandatory. S.B. 10 took effect September 1, 2025.

The plaintiffs

A group of public-school students and their parents — Protestant, Catholic, Jewish, Muslim, Hindu, Baha'i, Unitarian Universalist, and nonreligious families — sued the Alamo Heights Independent School District and related officials, seeking declaratory and preliminary-and-permanent injunctive relief. They asserted facial and pre-enforcement as-applied violations of the Establishment Clause and Free Exercise Clause.

Religious and historical context

The statutory text is substantively similar to the Kentucky statute invalidated in Stone v. Graham, 449 U.S. 39 (1981) (per curiam), with one notable difference: the Kentucky law required a context statement describing the Commandments as the "fundamental legal code of Western Civilization and the Common Law of the United States," while S.B. 10 forbids any contextual statement at all. The displays are not tied to any curricular unit, social-studies lesson, or comparative-religion course.

Companion litigation

A parallel Louisiana statute with substantially similar requirements was challenged in Roake v. Brumley, 170 F.4th 292 (5th Cir. 2026) (en banc), a companion case the Fifth Circuit decided the same term. Roake was dismissed as unripe because Louisiana's law gave local districts implementation discretion. Texas's S.B. 10, by contrast, prescribes the text and format with mechanical precision.

3 · Procedural History

1. Plaintiffs filed suit in the Western District of Texas and moved for a preliminary injunction.
2. The district court (a) denied the defendants' motion to dismiss on standing and ripeness grounds, (b) held that plaintiffs were likely to succeed on the merits, and (c) granted a preliminary injunction barring enforcement of S.B. 10 against the named plaintiff districts.
3. Defendants took an interlocutory appeal under 28 U.S.C. § 1292(a)(1).
4. The Fifth Circuit granted rehearing en banc on its own motion before any panel opinion issued, citing the importance of the Establishment Clause question.
5. The en banc court reversed, vacated the preliminary injunction, and rendered judgment dismissing all claims.

Important procedural note: the en banc majority treats the posture as review of a motion to dismiss (de novo) rather than as review of the preliminary injunction (abuse of discretion), because the majority holds that plaintiffs failed to state a claim as a matter of law.

4 · Judicial Votes

Majority opinion (Parts I, II, IV, V) — Judge Duncan, joined by Chief Judge Elrod and Judges Jones, Smith, Willett, Ho, Engelhardt, Oldham, and Wilson (9 votes).

Part III (justiciability) — Judge Duncan, joined by Chief Judge Elrod and Judges Jones, Smith, Engelhardt, and Wilson (6 votes). Judges Willett, Ho, and Oldham do not join Part III; they would hold plaintiffs lack standing but agree with the merits rationale as an alternative.

Concurrence — Judge Ho, concurring except as to Part III.

Concurrence in part and in the judgment — Judge Oldham, joined by Judge Willett.

Principal dissent — Judge Ramirez, joined by Judge Stewart in full, by Judge Richman as to Parts I.A and II, by Judge Haynes as to Part I.A, by Judge Graves, Judge Higginson, and Judge Douglas in full.

Dissent — Judge Southwick, joined by Richman (Part II.B), Graves (Part II.B), Higginson (Parts I and II), Douglas (Parts I and II), and Ramirez (Parts I and II).

Dissent — Judge Haynes (one-paragraph dissent, agreeing with Ramirez Part I.A).

Dissent — Judge Higginson, joined by Richman, Graves, Douglas, and Ramirez.

Bottom line: 9 judges for reversal, 8 for affirmance. Every member of the court wrote or joined.

5 · Holding

(a) Plaintiffs have Article III standing based on direct harm (mandated exposure of their children to state-prescribed religious text in a compulsory classroom setting), and their facial pre-enforcement challenge is ripe because S.B. 10's terms and implementation are fixed and mandatory.

(b) S.B. 10 does not violate the Establishment Clause. Kennedy v. Bremerton, 597 U.S. 507 (2022), abrogated Lemon v. Kurtzman and its entire test-apparatus, including the "secular purpose" prong and Stone v. Graham's application of that prong. The governing inquiry is whether the challenged government action bears the historical "hallmarks" of a founding-era establishment. A passive classroom display of the Decalogue, without coercion, funding shift, or formal religious exercise, bears none of those hallmarks.

(c) S.B. 10 does not violate the Free Exercise Clause under Mahmoud v. Taylor, 606 U.S. 522, 544 (2025). Mahmoud held that government burdens parents' religious exercise when it requires them to submit their children to instruction posing "a very real threat of undermining" their religious beliefs and practices. A silent classroom poster, the majority reasons, is not classroom instruction at all.

6 · Analysis of Opinions

6.1 Majority (Duncan, J.)

Part I — Statutory background. The majority describes S.B. 10's mechanical specificity (16x20-inch size, legibility requirement, prescribed King James text, mandatory "conspicuous place") and contrasts the statute with Louisiana's vaguer scheme.

Part II — Standard of review. De novo on the motion to dismiss; abuse of discretion on the preliminary injunction. Because the majority holds that plaintiffs fail to state a claim, the preliminary injunction necessarily falls.

Part III — Justiciability.

• Standing. Plaintiffs assert a direct harm: their school-age children will be compulsorily exposed, every school day, to a state-selected religious text. That is not mere "offended observer" standing condemned in American Legion (Gorsuch, J., concurring) or Valley Forge. It is analogous to the standing the Supreme Court has recognized for parents and students in Stone, Schempp, Lee, Edwards, and Mahmoud.
• Ripeness. Unlike Louisiana's statute in Roake En Banc, Texas's S.B. 10 is self-executing, text-prescribed, and uniform across districts. Both the fitness and hardship prongs of Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), are met.

(Judges Willett, Ho, and Oldham do not join Part III.)

Part IV — Establishment Clause.

• Lemon is dead. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022) (the Court "long ago abandoned Lemon and its endorsement test offshoot," and instructs that the Establishment Clause "must be interpreted by reference to historical practices and understandings").
• Stone fell with Lemon. Stone rested squarely on Lemon's secular-purpose prong; it survives only if that prong survived Kennedy, which, the majority says, it did not. This is the most controversial move and the point on which the dissents press hardest.
• Historical hallmarks approach. Drawing on Justice Gorsuch's concurrence in Shurtleff v. City of Boston, 596 U.S. 243, 286-87 (2022) (Gorsuch, J., concurring in the judgment), and Professor Michael McConnell's historical work, the majority identifies six hallmarks of a founding-era establishment: (i) government control over the doctrine and personnel of the established church; (ii) mandated attendance in the established church and punishment for failing to participate; (iii) punishment of dissenting churches and individuals for their religious exercise; (iv) restriction of political participation by dissenters; (v) financial support for the established church, often in a way that preferred the established denomination over others; and (vi) use of the established church to carry out civil functions.
• S.B. 10 has none. A passive classroom poster does not give the state control over any church's doctrine or personnel, does not compel attendance at an established church, does not punish dissenting worship or dissenting believers, does not restrict the political participation of non-Christians, does not channel public funds to an established denomination, and does not make any church an arm of the state.
• Not denominationally discriminatory. The Decalogue has sufficient cultural-historical resonance across Christian and Jewish traditions that the KJV selection does not itself state a Larson v. Valente claim.

Part V — Free Exercise / Mahmoud. The majority reads Mahmoud v. Taylor, 606 U.S. 522, 544 (2025), as requiring instruction that poses "a very real threat of undermining" parental religious upbringing — a standard satisfied only by actual classroom instruction, not a passive wall display. Classroom posters, the majority says, are not curriculum. Students are not quizzed on them, not required to recite them, not graded on them.

6.2 Ho, J., concurring (except as to Part III)

Judge Ho writes separately to criticize "offended-observer standing" and to emphasize the Founders' understanding that religion and republican self-government are complementary, invoking Washington's Farewell Address. He agrees standing is lacking under American Legion (Gorsuch concurrence) and Valley Forge but concurs in the merits on the alternative ground.

6.3 Oldham, J., concurring in part (joined by Willett, J.)

• Plaintiffs lack standing. "Offended-observer" standing contravenes constitutional structure. A facial pre-enforcement challenge to a self-executing statute about passive religious symbolism is "the legal equivalent of converting a 7-10 split."
• On the merits, S.B. 10 is constitutional for the reasons the majority gives. Stone is abrogated because Lemon is abrogated.
• The opinion reads Kennedy-Bremerton as a clean break with pre-existing Establishment Clause doctrine.

6.4 Ramirez, J., principal dissent

Part I.A — Stone v. Graham directly controls. Ramirez argues the Texas statute is, if anything, more vulnerable than Kentucky's: both mandate classroom Decalogue displays, but Kentucky's law at least tried to claim a secular purpose via a context statement. Texas forbids any context statement at all. Under Stone's own reasoning — that posting the Commandments has the natural and inevitable effect of inducing schoolchildren to "read, meditate upon, perhaps to venerate and obey" the Commandments, 449 U.S. at 42 — S.B. 10 is unconstitutional. Only the Supreme Court can overrule Stone; Kennedy never mentions Stone, and an inferior court cannot assume silent overruling. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

Part I.B — Even under Kennedy's historical-coercion framework, S.B. 10 is "problematically coercive." Kennedy expressly left intact the school-prayer line (Engel, Schempp, Lee, Santa Fe), which establishes that coercion in the school context is "subtle and indirect," Lee, 505 U.S. at 592-93. A mandatory Decalogue display, "confront[ing] elementary school students every day," Van Orden, 545 U.S. at 691 (plurality), is at least as coercive as the football-game prayer in Santa Fe.

Part II — Free Exercise violation under Mahmoud/Yoder. S.B. 10 "substantially interferes" with the religious development of children. Unlike Mahmoud, where parents could request opt-outs, parents cannot opt their children out of classroom walls. Strict scrutiny fails.

6.5 Southwick, J., dissenting

Judge Southwick's dissent is philosophically distinctive. He opens with Stephen Crane's poem from Black Riders and Other Lines (1895), XXXIX, contrasting "thunderous," compulsory religion with the "whispered" voice of God "that pleaded in tones of humility." His metaphorical point: Texas's every-classroom Decalogue is the thunderous voice, "simulated lightning and thunder, compulsorily seen and heard."

Part I. Rejects the majority's categorical claim that Kennedy dismantled all pre-Lemon Establishment Clause doctrine. Kennedy abrogated Lemon's unified test, but "the individual pieces of the Supreme Court's Establishment Clause jurisprudence have not been discarded, only the endorsement test and the Lemon test's aggregation of principles." The secular-purpose requirement, school-prayer line, and Stone itself survive as separate doctrinal strands.

Part II.A — Secular purpose. Texas offers only scattered legislator comments to support a secular purpose, and Stone and McCreary County teach that a Ten Commandments display, standing alone, is "plainly religious in nature" no matter what "legislative recitation of a supposed secular purpose" accompanies it.

Part II.B — Coercion similar to school prayer. The school-prayer cases remain good law and all rest on school-context coercion. A classroom poster children see every hour of every school day is functionally more pervasive than a one-time graduation prayer. "If a prayer heard but ignored can be coercive, then the posting of explicitly religious text in a place where it can be seen in every classroom is more coercive."

6.6 Haynes, J., dissenting

A one-paragraph dissent: she joins Ramirez Part I.A. Stone v. Graham is clear, binding, on-point Supreme Court precedent that makes S.B. 10 unconstitutional, and that is the beginning and end of her inquiry.

6.7 Higginson, J., dissenting (joined by Richman, Graves, Douglas, Ramirez)

Higginson's dissent is the most ambitious in scope and organizes around three constitutional priorities.

A. Non-discrimination among religions. Echoing Cath. Charities Bureau v. Wisconsin Labor & Industry Review Commission, 605 U.S. 238 (2025), and Larson v. Valente, 456 U.S. 228 (1982), he argues the "clearest command" of the Establishment Clause forbids denominational preference. Texas mandated the King James Version — the Protestant Decalogue — to the exclusion of Catholic, Lutheran, Jewish, and non-Abrahamic alternatives.

B. Solicitude for students. The school context is constitutionally special. McCollum, Schempp, Edwards, Lee, Santa Fe, and most recently Mahmoud teach that coercion permeates easily in schools. The majority's claim that the Commandments displays are benign because students are not forced to "adopt" them "forgets their curiosity": students will naturally wonder about "the LORD," "other gods," "graven images," "kill[ing]," "adultery," and "covet[ing] a neighbor's wife." Teachers will be asked and will have to answer.

C. Parental rights. Mahmoud held that "[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses 'a very real threat of undermining' the religious beliefs and practices that the parents wish to instill." 606 U.S. at 544 (quoting Wisconsin v. Yoder, 406 U.S. 205, 218 (1972)). The Mahmoud plaintiffs at least had the theoretical possibility of opt-outs; Nathan's plaintiffs cannot opt their children out of a classroom wall, so Texas's statute is, if anything, a fortiori a Mahmoud-type burden.

7 · Future Applications (Five Hypotheticals)

Same-side (display permitted under Nathan)

A — state-capitol monument. A state erects a six-foot granite monument of the Decalogue on the grounds of the state capitol, along with a dozen other historical-legal monuments (Magna Carta, Napoleonic Code, Hammurabi, U.S. Constitution, Declaration of Independence). Under Nathan, a fortiori permissible: less in-your-face than a classroom poster, audience is "mature adults," no hallmark triggered.

B — statewide "In God We Trust" classroom posters. No coercion, no benefit/burden, no hallmark, plus ceremonial-deism tradition dating to 1956. Constitutional.

Opposite-side (invalidated even under Nathan)

C — classroom Lord's Prayer recitation. Even Nathan concedes the school-prayer line survives. Direct state-prescribed worship in a compulsory-attendance setting implicates hallmark (i) (government control of religious doctrine) and hallmark (ii) (mandated attendance and participation in religious exercise). Unconstitutional.

D — mandatory Apostles' Creed poster prefaced "THIS IS OUR FAITH." Creates denominational preference on its face. The Nathan majority distinguished S.B. 10 on the ground that the Commandments are pan-Judeo-Christian; a creed specific to a single sect flunks Larson v. Valente and the Cath. Charities denominational-discrimination rule.

Fence-sitter

E — mandatory classroom Five Pillars of Islam display in a Texas district with a large Muslim population, adopted by a school board rather than the state. Two readings are available.

• Display permitted. If one takes Nathan literally, no coercion, no hallmark, passive posters are permissible. Denying it while permitting the KJV Decalogue would itself raise a Larson problem.
• Display forbidden. If one takes the dissents seriously, the majority's "cultural resonance" move was denominational rationalization; a distinctly Islamic text in a majority-Christian state may now look like coercion and preference.

8 · Critique

Scholarly criticism

Scholarly reaction to the Ten Commandments classroom-display laws, even before Nathan, has been skeptical. Professors Ira Lupu and Robert Tuttle have argued that the "character of the Commandments, combined with the prominence of the text in the posting, puts a far greater burden on the state to undo the obvious inference that they are being displayed for religious reasons." Lupu & Tuttle, The Ten Commandments in Louisiana Public Schools, 100 Chi.-Kent L. Rev. 601, 620 (2025). Professor Paul McGreal has written that students "confront a government message that endorses particular religious teachings as worthy of permanent display." McGreal, Ten Commandments Cases: Learning from Reformation Coercion, 124 Mich. L. Rev. Online 69, 80 (2026).

Independent analytical observations

(a) The Stone question is the central weakness. The majority's move — Stone rested on Lemon; Lemon was abrogated; therefore Stone was abrogated — is doctrinally aggressive. The Supreme Court has consistently held that inferior federal courts must follow directly on-point precedent even if its reasoning has been eroded. Rodriguez de Quijas, 490 U.S. at 484; Agostini v. Felton, 521 U.S. 203, 237 (1997).

(b) The historical-hallmarks test is radically underdetermined. The majority identifies "six hallmarks" but does not explain why those six, rather than (say) the broader "coercion toward orthodoxy" tradition Justice Kavanaugh traced in American Legion, are the exclusive measure.

(c) The denominational-preference problem is real. The KJV Decalogue differs, in ways Jewish and Catholic Americans notice, from the textus-receptus numbering and from Jewish and Catholic Decalogues. Higginson's Cath. Charities/Larson argument is the sharpest doctrinal attack in the dissents.

(d) The parent-rights/Mahmoud disanalogy cuts harder than the majority admits. Mahmoud's parents could at least try to opt their children out; plaintiffs here cannot.

(e) The offended-observer standing fight is not resolved. The splintered Part III (six judges for direct-harm standing; three judges in Willett-Ho-Oldham camp) leaves the doctrine unstable.

Perspective-based critiques

From an originalist / Madisonian perspective. The Nathan majority, ironically for a court citing McConnell, overlooks Madison's own Memorial and Remonstrance. Madison's "take alarm at the first experiment on our liberties" was precisely a warning about the state-selection problem: not whether the state compels adherence, but whether the state prefers one religion.

From a progressive / coercion-focused perspective. The majority ignores fifty years of recognition that school-age children are uniquely susceptible to state-sponsored religious messaging. The "no coercion, no violation" rule produces a regime in which majoritarian religion colonizes public space precisely where minority children have least choice to avoid it.

From a doctrinal-minimalism perspective. Haynes's two-paragraph dissent — "We must follow the Supreme Court, and that is what the opinion Stone shows" — is the most restrained and, on vertical-stare-decisis grounds, the most jurisprudentially conservative position in the case.

9 · Key Quotations

Appendix · Vote Table

Final tally: 9-8 to reverse the preliminary injunction and dismiss.

Prepared April 21, 2026 · View full opinion · Read the companion essay